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674 SUPREME COURT REPORTS ANNOTATED

Tenchavez vs. Escaño

*
No. L-19671. July 26, 1966

PASTOR B. TENCHAVEZ, plaintiff and appellant, vs. VICENTA

F. ESCAÑO, ET AL., defendants and appellees.

RESOLUTION

Marriage; Church disavowal of marriage should be proven.

________________

* See main decision in 15 Supreme Court Reports Annotated.

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—Although it was alleged that papal dispensation for the first marriage was
granted, no such document appears OR record, To be considered, the
Church’s disavowal of the marriage must be sufficiently established.
Moral damages; Alienation of affection is incompatible with allegation
of contributory negligence.—Movant plaintiff-appellant poses the novel
theory that the parents of the erring wife are undeserving of award of
damages because they are guilty of contributory negligence in failing to take
proper and timely measures to dissuade their daughter f rom leaving her
husband, obtaining a foreign divorce and marrying a foreigner. This theory
cannot be considered, because it contradicts his previous theory of
alienation of affection. Contributory negligence involves an omission to
perform an act, while alienation of affection involves the performance of a
positive action.
Marriage; Refusal to perform wifely duties and desertion of husband.
—The award of moral damages against the wife is assailed on the ground
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that her refusal to perform her wifely duties, her denial of consortium and
desertion of her husband are not included in the enumeration of cases where
moral damage may lie. The argument is untenable. The acts of the wife (up
to and including her divorce, for grounds not countenanced by law),
constitute a willful infliction 01 injury upon plaintiff’s feelings in a manner
“contrary to morals, good customs or public policy” (New Civil Code,
Article 21) for which paragraph 10 of Article 2219, authorizes an award of
moral damages.
Same; Economic sanctions to enforce right of consortium are not
incompatible with individual liberty.—While it is not within the province of
courts to attempt to compel one of the spouses to cohabit with, and render
conjugal rights to, the other (Arroyo vs. Arroyo, 42 Phil. 54), economic
sanctions in civil cases are not incompatible with the respect accorded to
individual liberty.
Divorce; Non-recognition of foreign decree is not an impairment of
liberty of abode.—The decision (declaring the divorce decree invalid) did
not impair appellee’s constitutional liberty of abode and freedom of
locomotion. The right of a citizen to transfer to a foreign country and seek
divorce in a diverse forum is one thing, and the recognition to be accorded
to the divorce decree thus obtained is quite another.
Same; Foreign decrees in contravention of public policy can not be
enforced or recognized.—The public policy of this forum is adverse to
recognition of the wife’s divorce in Nevada. The principle is well-
established, in private international law, that foreign decrees cannot be
enforced or recognized if they contravene public policy (Nussbaum,
Principles of Private International Law, p. 232).

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Appeals; Question of jurisdiction over the person must be properly

raised on appeal.—The issue of jurisdiction over the person of appellee was
not properly brought to this Court for resolution, either on appeal or by
special remedy, when the lower court overruled her challenge to its
jurisdiction. Neither was the alleged error of the court put in issue in her
brief as appellee, as it was incumbent upon her to do (Relativo vs. Castro, 76
Phil. 563; Lucero vs. De Guzman, 45 Phil. 852). As the point did not affect
the jurisdiction over the subject matter, the court properly ignored it.
Actions; Jurisdiction; When jurisdiction over the person of non-
resident citizens is not essential.—When the action against the non-resident
defendant affects the personal status of the plaintiff, as, for instance, an
action for separation or for annulment of marriage, Philippine courts may
validly try and decide the case, because, then, they have jurisdiction over the
res, and jurisdiction over the person of the non-resident is not essential. The
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res is the personal status of the plaintiff domiciled in the Philippines. (1

Moran 411, 1963 Ed., citing Mabanag vs. Gallemore, 81 Phil. 254).
Same; Withdrawal of objection to court’s jurisdiction over the person
of defendant.—The award of damages was merely incidental to the petition
for legal separation. For this reason, and because she filed a counterclaim
against plaintiff-appellant, defendant-appellee should be deemed to have
withdrawn the objection to the lower court’s jurisdiction over her person,
even though she had stated in the counterclaim that she was not waiving her
special defense of lack of jurisdiction.
Torts or quasi-delicts; Action based on denial of cohabitation and
desertion of husband; Prescription.—The argument that the action on tort
had prescribed because it was not filed within four years from the marriage
in 1948, is erroneous. The marriage was not.the cause of appellee’s
wrongful conduct. Her denial of cohabitation, refusal to render consortium
and desertion of her husband started right after their wedding, and such
wrongs have continued ever since, so the period of limitation had never
been completed.
Actions; Jurisdiction over person of non-resident citizen in proceedings
in rem: Submission to jurisdiction by asking court for affirmative relief.—
The rule stated in the case of Banco Español vs. Palanca, 37 Phil. 921, to the
effect that in proceedings in rem or quasi in rem the relief must be confined
to the res, and the court can not lawfully render a personal judgment, was
laid down for those cases where the defendant never submitted to the
jurisdiction of the Philippine courts. In the present case, Escaño, while
objecting to the jurisdiction of the Court over her person, also f iled an
answer with a counterclaim asking for an award of damages against
plaintiff-appellant.

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VOL. 17, JULY 26, 1966 677

Tenchavez vs. Escaño

She took the offensive and asked the Court for a remedy, and this after the
court below overruled her objection that she was not within its jurisdiction.
In asking the Court for affirmative relief, she submitted to its jurisdiction.
Same; Reason for the rule.—The reason for the rule is that the courts
can not look with favor upon a party adopting not merely inconsistent, but
actually contradictory, positions in one and the same suit, claiming that a
court has no jurisdiction to render judgment against it, but has such
jurisdiction to give a decision in its favor (Dailey vs. Kennedy, 64 Mich.
208, 31 N.W. 125; Harvey vs. Bishop, 171 Okla. 497, 43 Pac. 2d, 48;
Haverstick vs. Southern P. Co. [Calif.], 37 Pac. 2d. 146). In the case at bar,
although Escaño made a reservation of her former plea of non-jurisdiction

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when she filed her counterclaim, such reservation did not remove the
obnoxious contradictory positions she assumed.
Appeals; Contents of appellee’s brief; Appellee cannot ask for reversal
or modification of appealed judgment.—An appellee can make counter-
assignments of error for the purpose of sustaining the appealed judgment,
although it is not allowed to ask that the same be reversed or modified
(Bunge Corporation vs. Camenforte & Co., 91 Phil. 861; Cabrera vs.
Provincial Treasurer of Tayabas, 75 Phil. 780; Pineda & Ampil vs.
Bartolome, 95 Phil. 930; David vs. De la Cruz, L-11656, April 18, 1958). In
the instant case, appellee failed to do so, and because of this the Supreme
Court had every reason to consider the issue of jurisdiction abandoned.

RESOLUTION ON
MOTIONS TO RECONSIDER

Isabelo V. Binamira, Filemon B. Barria and Crispin D. Baizas &

Associates for appellants.
Vicente L. Faelnar, for appellee Mamerto Escaño and Mena F.
Escaño.
Jalandoni & Jamir for appellee Vicenta F. Escaño.
Norberto J. Quisumbing for intervenor Russel Leo Moran.

REYES, J.B.L., J.:

Not satisfied with the decision of this Court, promulgated on 29

November 1965, in the above-entitled case, plaintiff-appellant Pastor
B. Tenchavez and defendant-appellee Vicenta F. Escaño,
respectively, move for its re-

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Tenchavez vs. Escaño

consideration; in addition, Russell Leo Moran, whom said defendant

married in the United States, has filed, upon leave previously
granted, a memorandum in intervention.
Movant Tenchavez poses the novel theory that Mamerto and
Mina Escaño are undeserving of, an award for damages because
they are guilty of contributory negligence in failing to take up proper
and timely measures to dissuade their daughter Vicenta from leaving
her husband (Tenchavez), obtaining a foreign divorce and marrying
another man (Moran). This theory cannot be considered: first,
because this was not raised in the court below; second, there is no
evidence to support it; third, it contradicts plaintiff’s previous theory
of alienation of affections in that contributory negligence involves

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an omission to perform an act while alienation of affection involves

the performance of a positive act.
The prayer of appellant Tenchavez in his motion for
reconsideration to increase the damages against Vicenta (P25,000 for
damages and attorney’s fees were awarded to Tenchavez in the
decision) should, likewise, be denied, all factors and circumstances
in the case having been duly considered in the main decision,
In seeking a reexamination of the decision, defendantappellee
Vicenta Escaño, in turn, urges a comparison between the two
marriages, stating, in plainer terms, that the Tenchavez-Escaño
marriage was no more than a ceremony, and a faulty one at that,
while the Moran-Escaño marriage fits the concept of a marriage as a
social institution because publicly contracted, recognized by both
civil and ecclesiastical authorities, and blessed by three children.
She concludes that, since the second marriage is the better one, it
deserves the law’s recognition and protection over the other. This is
a dangerous proposition: it legalizes a continuing polygamy by
permitting a spouse to just drop at pleasure her consort for another in
as many jurisdictions as would grant divorce on the excuse that the
new marriage is better than the previous one; and, instead of fitting
the concept of marriage as a social institution, the proposition
altogether does away with the social aspects of marriage in favor of
its being a matter of private contract and personal adventure.

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Tenchavez vs. Escaño

The said appellee claims that state recognition should be accorded

the Church’s disavowal of her marriage with Tenchavez. On this
point, our main decision limited itself to the statement, “On 10
September 1954, Vicenta sought papal dispensation of her marriage
(Exh. P-2)", without stating that papal dispensation was actually
granted, the reason being that Vicenta’s claim that dispensation was
granted was not indubitable, and her counsel, during the trial in the
lower court, did not make good his promise to submit the document
evidencing the papal dispensation; in fact, no such document
appears on record. The Church’s disavowal of the marriage, not
being sufficiently established, it cannot be considered. Vicenta’s
belated appeal to Canon law, after she had sought and failed to
obtain annulment in the civil courts, and after she had flaunted its
principles by obtaining absolute divorce, does not, and can not,
sound convincing. Particularly when account is taken of the
circumstances that she obtained the Nevada divorce in 1950 and
only sought ecclesiastical release from her marriage to Tenchavez in
1954.

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The award of moral damages against Vicenta Escaño is assailed

on the ground that her refusal to perform her wifely duties, her
denial of consortium and desertion of her husband are not included
in the enumeration of cases where moral damages may lie. The
argument is untenable. The acts of Vicenta (up to and including her
divorce, for grounds not countenanced by our law, which was hers at
the time) constitute a wilful infliction of injury upon plaintiff’s
feelings in a manner “contrary to morals, good customs or public
policy” (Civ. Code, Art. 21) for which Article 2219(10) authorizes
an award of moral damages. Neither the case of Ventanilla vs.
Centeno, L-14333, 28 January 1961 (which was a suit filed by a
client against his lawyer for failure to perfect an appeal on time), nor
the case of Malonzo vs. Galang, L-13851, 27 July 1960 (wherein the
precise ruling was that moral damages may not be recovered for a
clearly unfounded civil action or proceeding), now invoked by the
said defendant-appellee, is in point.
It is also argued that, by the award of moral damages,

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an additional effect of legal separation has been added to Article

106. Appellee obviously mistakes our grant of damages as an effect
of legal separation. It was plain in the decision that the damages
attached to her wrongful acts under the codal article (Article 2176)
expressly cited.
Appellee-movant commits a similar mistake by citing Arroyo vs.
Arroyo, 42 Phil. 54, and Ramirez-Cuaderno vs. Cuaderno, L-20043,
28 November 1964, to support her argument that moral damages did
not attach to her failure to render consortium because the sanction
therefor is spontaneous mutual affection, and not any legal mandate
or court order. The Arroyo case did rule that “it is not within the
province of courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to, the other”,
but it referred to physically coercive means, the Court declaring that
—

“We are disinclined to sanction the doctrine that an order, enforcible by

process of contempt, may be entered to compel restitution of the purely
personal right of consortism.” (Cas. cit., p. 60) (Italics supplied)

But economic sanctions are not held in our law to be incompatible

with the respect accorded to individual liberty in civil cases. Thus, a
consort who unjustifiably deserts the conjugal abode can be denied
support (Art. 178, Civil Code of the Phil.). And where the wealth of
the deserting spouse renders this remedy illusory, there is no cogent

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reason why the court may not award damages, as it may in cases of
breach of other obligations to do intuitu personae even if in private
relations physical coercion be barred under the old maxim “Nemo
potest precise cogi ad factum”.
For analogous reasons, the arguments advanced against the
award of attorney’s fees must be rejected as devoid of merit.
. Contrary to intervenor Moran’s contention, the decision did not
impair appellee’s constitutional liberty of abode and freedom of
locomotion, as, in fact, Vicenta Escaño did exercise these rights, and
even abused them

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by stating in her application for a passport that she was “single”, the
better to facilitate her flight from the wrongs she had committed
against her husband. The right of a citizen to transfer to a foreign
country and seek divorce in a diverse forum is one thing, and the
recognition to be accorded to the divorce decree thus obtained is
quite another; and the two should not be confused.
Intervenor reiterates that recognition of Vicenta’s divorce in
Nevada is a more enlightened view. The argument should be
addressed to the legislature. As the case presently stands, the public
policy of this forum is clearly adverse to such recognition, as was
extensively discussed in the decision. The principle is well-
established, in private international law, that foreign decrees cannot
be enforced or recognized if they contravene public policy
(Nussbaum, Principles of Private International Law, p. 232).

“It is thoroughly established as a broad general rule that foreign law or

rights based therein will not be given effect or enforced if opposed to the
settled public policy of the forum.” (15 C.J.S. 853)
“SEC. 6. Limitations.—In the recognition and enforcement of foreign
laws the Courts are slow to overrule the positive law of the forum, and they
will never give effect to a foreign law where to do so would prejudice the
state’s own rights or the rights of its citizens or where the enforcement of
the foreign law would contravene the positive policy of the law of the forum
whether or not that policy is reflected in statutory enactments.” (11 Am. Jur.,
300–301).
“A judgment affecting the status of persons, such as a decree confirming
or dissolving a marriage, is recognized as valid in every country, unless
contrary to the policy of its own law. Cottington’s Case, 2 Swan St. 326,
note; Roach vs. Garvan, I Ves. St. 157; Harvey vs. Farnie, LR 8 App. Cas.
43; Cheely vs. Clayton, 110 U.S. 701 [28:298]." (Hilton vs. Guyot 159 U.S.
113, 167; 40 L. Ed. 95, 110) (Italics supplied)

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It is, therefore, error for the intervenor to ask that “private

international law—rather than Philippine civil law—should decide
the instant case”, as if the two branches of the law contradicted one
another.
In a consolidated paper (intervenor’s rejoinder and appellee
Vicenta Escaño’s supplemental motion for reconsideration), the
issue is raised that “the Supreme Court cannot reverse the decision
of the lower court dismissing

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the complaint nor sentence Vicenta Escaño to pay damages, without

resolving the question of lack of jurisdiction over her person”.
A resolution by the Supreme Court of the issue of jurisdiction
over the person of appellee Vicenta Escaño, and which was
disallowed by the court below, was unnecessary because the matter
was not properly brought to us for resolution, either on appeal or by
special remedy which could have been availed of by the appellee
when the lower court, on 1 June 1957, overruled her challenge to its
jurisdiction. Neither was the alleged error of the lower court put in
issue in her brief as appellee, as it was incumbent upon her to do
(Relativo vs. Castro, 76 Phil. 563; Lucero vs. De Guzman, 45 Phil.
852). Not affecting the jurisdiction over the subject matter, the court
properly ignored the point (Rev. Rule 51, section 7).

“SEC. 7. Questions that may be decided.—No error which does not affect
the jurisdiction over the subject matter will be considered unless stated in
the assignment of errors and properly argued in the brief, save as the court,
at its option, may notice plain errors not specified, and also clerical errors.”
At any rate,
“x x x. When, however, the action against the nonresident defendant
affects the personal status of the plaintiff, as, for instance, an action for
separation or for annulment of marriage, x x x, Philippine courts may
validly try and decide the case, because, then, they have jurisdiction over the
res, and in that event their jurisdiction over the person of the non-resident
defendant is not essential. The res is the personal status of the plaintiff
domiciled in the Philippines, x x x,” (1 Moran 411, 1963 Ed., citing
Mabanag vs. Gallemore, 81 Phil. 254)

The award of damages, in the present case, was merely incidental to

the petition for legal separation. For all these reasons, and because
she filed a counterclaim against plaintiff (Rec. App. pp. 205–206),
Vicenta should be deemed to have withdrawn the objection to the
lower court’s jurisdiction over her person, even though she had

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stated in the counterclaim that she was not waiving her special
defense of lack of jurisdiction.
It is urged that the actions for legal separation and for quasi-
delict have prescribed: the first, because it was not filed within one
year from and after the date on which

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the plaintiff became cognizant of the cause; and, the second, because
it was not filed within four years since the Tenchavez-Escaño
marriage in 1948.
The argument on both points is untenable.
The action for legal separation was filed on 31 May 1956.
Although in a letter, under date of 10 December 1954, the
Department of Foreign Affairs informed plaintiff Tenchavez that
“According to information, she (appellee) secured a decree of
divorce on October 21, 1950 x x x and married an American citizen,
Russel Leo Moran, on September 13, 1954", there is no satisfactory
and convincing evidence as to the time when plaintiff Tenchavez
received the said letter; nor was she duty-bound to act immediately
upon hearsay information. Since prescription is an affirmative
defense, the burden lay on the defendant to clearly prove it, and her
proof on it was inadequate.
On the argument about the action on tort having prescribed, the
basis thereof is erroneous: the marriage was not the cause of
appellee’s wrongful conduct Her denial of cohabitation, refusal to
render consortium and desertion of her husband started right after
their wedding but such wrongs have continued ever since, She never
stopped her wrongdoings to her husband, so that the period of
limitation has never been completed.
Finally, we see no point in discussing the question of appellee
Escaño’s criminal intent, since nothing in the main decision was
designed or intended to prejudge or rule on the criminal aspect of the
case, if any, or any of its constituent elements. It is to be noted that
in this civil case only a preponderance of evidence is required, and
not proof beyond reasonable doubt. While much could be said as to
the circumstances surrounding the divorce of the appellee, we prefer
to abstain from so doing in order not to influence luence in any way
the criminal case, should any be instituted.
For the reasons above cited, all motions for reconsideration are
hereby denied.

Chief Justice Concepcion and Justices Barrera, Dizon, Regala,

Makalintal, J.P. Bengzon, Zaldivar and Sanchez, concur.

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RESOLUTION ON THE
SECOND MOTION TO RECONSIDER
OF APPELLEE and INTERVENOR

September 14, 1966

REYES, J.B.L., J.:

Their first motion for reconsideration having been denied, Vicenta

Escaño and Russel Leo Moran, through counsel, have filed a second
motion for reconsideration.
It is first averred that this Court’s decision contradicts the
doctrine laid down in Banco Español Filipino vs. Palanca, 37 Phil.
921, that in proceedings in rem or quasi in rem the relief must be
confined to the res, and the Court cannot lawfully render a personal
judgment.
Movants’ own quotation from that decision demonstrates the
difference in the facts between the case at bar and the authority
cited. For their own excerpt shows that the rule now invoked was
laid down for instances where the defendant never submitted to the
jurisdiction of our courts. We said then:

“If, however, the defendant is a non-resident, and remaining beyond the

range of the personal process of the court refuses to come in voluntarily, the
court never acquires jurisdiction over the person at all. x x x” (Cas. Cit. p.
930)

The defendant Palanca, in 37 Phil 921, so much refused to come in

voluntarily that he was declared in default. Was this the case of
Vicenta Escaño? The records show on their face that it was not.
While she objected to the jurisdiction of the Court over her person,
she also filed an answer with a counterclaim asking for an award of
damages against plaintiff-appellant Tenchavez. Instead of “refusing
to come in voluntarily”, as Palanca did (in 37 Phil. 921), Escaño
took the offensive and asked the Court for a remedy, a judgment
against her opponent; and this after the court below overruled her
objection that she was not within its jurisdiction. In asking the Court
for affirmative relief, Escaño submitted to its jurisdiction. In the
United States, whence our adjective law finds its sources, the
Federal Supreme Court has ruled (Merchant’s Heat & Light Co. vs,
Clow & Sons, 204 U.S. 286, 51 Law Ed. 488):

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“We assume that the defendant lost no rights by pleading

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to the merits, as required, after saving its rights. Harkness vs. Hyde, 98 U.S.
476, 25 L. ed. 237; Southern P. Co. vs. Denton, 146 U.S. 202, 36 L. ed. 943,
13 Sup. Ct. Rep. 44. But by setting up its counterclaim the defendant
became a plaintiff in its turn, invoked the jurisdiction of the court in same
action, and, by invoking, submitted to it. It is true that the counterclaim
seems to have arisen wholly out of the same transaction that the plaintiff
sued upon, and so to have been in recoupment rather than in set-off proper.
But, even at common law, since the doctrine has been developed, a demand
in recoupment is recognized as a cross demand, as distinguished from a
defense. Therefore, although there has been a difference of opinion as to
whether a defendant, by pleading it, is concluded by the judgment from
bringing a subsequent suit for the residue of his claim, a judgment in his f
avor being impossible at common law, the authorities agree that he is not
concluded by the judgment if he does not plead his cross demand, and that
whether he shall do so or not is left wholly to his choice. Davis vs. Hedges,
L.R. 6 Q.B. 687; Mondel vs. Steel, 8 Mees. & W. 858, 872; O’Connor vs.
Varney, 10 Gray, 231. This single fact shows that the defendant, if he elects
to sue upon his claim in the action against him, assumes the position of an
actor and must take the consequence. The right to do so is of modern
growth, and is merely a convenience that saves bringing another suit, not a
necessity of the defense,” (Italics supplied)

The reason for the rule is manifest. The courts can not look with
favor upon a party adopting not merely inconsistent, but actually
contradictory, positions in one and the same suit, claiming that a
court has no jurisdiction to render judgment against it, but has such
juristion to give a decision in its favor (Dailey vs. Kennedy, 64
Mich. 208, 31 N.W. 125; Harvey vs. Bishop, 171 Okla. 497, 43 Pac.
2d, 48; Haverstick vs. Southern P. Co. (Calif.) 37 Pac. 2d, 146).

“Another reason, equally valid, is that if such defendant shall ask for any
relief other than that addressed to his plea, he is seeking to gain an
unconscionable advantage over his adversary, whereby, if the determination
be in his favor, he may avail himself of it, while if it be against him, he may
fall back upon his plea of lack of jurisdiction of the person.” (Olcese vs.
Justice’s Court, 156 Calif. 82, 103 Pac. 318).

True, Escaño made a reservation of her former plea when she filed
her counterclaim; but such reservation did not remove the obnoxious
contradictory positions she assumed.

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Secondly, appellee Vicenta Escaño not only adopted inconsistent

positions in the court below but abandoned all pretense that court’s
lack of jurisdiction over her person upon appeal to this Court. She
made no reference whatever to that question in her brief as appellee.
Coupled with her previous demand for affirmative relief, Vicenta’s
silence on appeal only confirms her waiver of the point. Her excuse
is that, the lower court having ruled in her favor, she could not very
well assign as error the overruling of her plea of non-jurisdiction.
That excuse is unserviceable; for this Court has repeatedly held (and
it is now well settled) that an appellee can make counter assignments
of error for the purpose of sustaining the appealed judgment, altho it
is not allowed to ask that the same be reversed or modified (Bunge
Corp vs. Camenforte Co., 91 Phil. 861, and cases cited therein;
Cabrera vs. Provincial Treasurer of Tayabas, 75 Phil. 780; Pineda &
Ampil vs. Bartolome, 95 Phil. 930; David vs. De la Cruz, L-11656,
April 18, 1958). Having failed to do so, this Court had every reason
to consider the issue of jurisdiction abandoned, and appellee’s
belated attempts to resurrect it, by alleging an imaginary error on our
part, are pointless and vain. The same thing can be said of her effort
to escape the jurisdiction she had invoked in her counterclaim by not
appealing its rejection by the trial court. At most, it amounts to
equivocal conduct that can not revive the inconsistent claim of non-
jurisdiction, abandoned by her seeking affirmative relief.
Wherefore, the second motion for reconsideration is denied.

Chief Justice Concepcion and Justices Barrera, Dizon,

Makalintal, J.P. Bengzon, Zaldivar, Sanchez and Castro, concur. Mr.
Justice Regala took no part.

Motion for reconsideration denied.

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